Offences against the state

• Crimes that affect the security of the state as a whole. The

main offences against the state are treason and misprision of
treason, sedition (and incitement to mutiny), offences
involving official secrets, and acts of terrorism.
• TREASON: section 43 of the Penal Code
• Treason felony/ Misprision of Treason
• Shamwana v. The People (1985)41

TREASON FELONY: (s.45 Penal Code)

A person is guilty of treason-felony and shall be liable to
imprisonment for twenty years who-
(a)prepares or endeavours to procure by unlawful means any
alterations of the law or the policies of the Government; or
(b) prepares or endeavours to carry out by
unlawful means any enterprise which usurps
the executive power of the State in any
matter of both a public and a general nature.
Mere disobedience of the State or uttering of
the words that; “I will make my own laws and
or policies” is not sufficient.
 MISPRISION OF TREASON:
It is a common law misdemeanor to omit to report a felony to the
police. House of Lords in Sykes v. Director of Public Prosecutions
(1962) AC 528, (1961) 3 All E.R 33
• In Zambia, a person is guilty of treason misprision if he becomes
an accessory after the fact to treason or conceals any information
relating to a person who wants to commit treason or does not use
other reasonable endeavours to prevent the commission of the
offence.
• The accused must have information which is definite that it ought
to be reported otherwise as per Lord Goddard (in Sykes above);
“A man is not bound nor would he be wise to disclose rumors or
mere gossip”.
It must be proved that s/he omitted to make disclosures within a
reasonable time and that s/he had a reasonable opportunity to do
so.
• It is not sufficient to tell the police that a felony has
been committed. The reporter must tell the name
of the person who did it if he knows it, the place
and give further details of the offence committed i.e
all the material facts known to him. Lord Denning
from the same case
• A felony may at times be very trivial hence
misprision should only be extended to very serious
felonies such as a felony or offence which is of so
serious a character that an ordinary law-abiding
citizen would realize that he ought to report it to the
police…Lord Denning.
 Mens Rea
• Knowledge of the facts which amount to a
treason
Actus Reus

• The actual concealing of the information that

a treason will be committed.
SEDITION:
The speaking or writing of words that are likely to incite
ordinary people to public disorder or insurrection. Sedition
is a common-law offence (known as seditious libel if the
words are written) if it is committed with the intention of
• (1) arousing hatred, contempt, or disaffection against the
government of the day
• (2) encouraging any change of the law by unlawful means;
or (3) raising discontent among Citizens or promoting ill-
will and hostility between different classes of subjects of
citizens.
• There must be an intention to achieve these consequences
by violence and disorder.
• A person is guilty of offences in respect of seditious
practices if s/he:
(a) does or attempts to do, or makes any preparation to
do, or conspires with any person to do, any act with a
seditious intention;
(b) utters any seditious words;
(c) prints, publishes, sells, offers for sale, distributes or
reproduces any seditious publication;
(d) imports any seditious publication, unless he has no
reason to believe that it is seditious;
• Or
without lawful excuse, has in his or her possession any
seditious publication.
 INCITING MUTINY (SOLDIERS OR POLICE)
• An offence under the English Law; Armed
Forces Act 2006 committed by any member of
forces who combines with one or more other
members (whether or not civilians are also
involved) to overthrow or resist lawful
authority in those forces or any forces
cooperating with them. If a civilian is involved,
his conduct will be a matter for the ordinary
criminal law.
• In Zambia however,
Any person who advisedly attempts to effect any of the
following purposes ie:
(a) to seduce any person serving in the Defence Force
or any member of the Zambia Police Force from his
duty and allegiance to the President; or
(b) to incite any such persons to commit an act of
mutiny or any traitorous or mutinous act; or
(c) to incite any such persons to make or endeavour to
make a mutinous assembly;
is guilty of a felony, and is liable to imprisonment for life.
• In the context of CRIMINAL LAW, mutiny
refers to an insurrection of soldiers or crew
members against the authority of their
commanders.
• The offense is similar to the crime of
SEDITION, which is a revolt or an incitement
to revolt against established authority,
punishable by state.
 OFFENCES AGAINST PUBLIC SAFETY
Unlawful Assembly and Riots:
Unlawful assembly (s.74 (1) Penal Code):
an assembly of three or more persons with intent to
commit a crime or to carry out a common purpose
or conduct themselves in such a manner as to cause
reasonable men to apprehend a breach of peace.
It is immaterial that the assembly was initially lawful
as long as the persons conducted themselves in the
manner aforesaid. This proposition is supported by
the case of Burns (1886) 16 Cox C C 355.
Riot (s.74 (2) Penal Code):
This is when the unlawful assembly does some acts in part
execution of the common purpose or has begun to
execute a common purpose by a breach of the peace and
to the terror of the public.
Actus Reus:
The mere assembly or coming together or being together.
Not every one present is necessarily guilty only those who
share in the common purpose (Burns case).
If three persons are assembled, and two resolve to set upon
the third, this is not an unlawful assembly but a breach of
peace and in certain instances may amount to the offence
of affray. However, if the three assembled men resolve to
attack a fourth, that will amount to an unlawful assembly.
Mens rea:
• The intention to use or to aid and abet the use of violence
or to use or abet acts which one knows to be likely to cause
a breach of the peace.
• When for example the likelihood of a breach of peace
depends on the display of the banner;
“It is not necessarily illegal on that account as to every
person present at the meeting, but would only be
illegal as to that particular man or as to those
particular persons, who had adopted the banner, or
who with full knowledge to the existence of the banner,
had given their cooperation and countenance to the
meeting.”
 DISORDERLY BEHAVIOUR IN PUBLIC PLACES

• Going armed in public found in section 84 of

the Penal Code
• Affray
• Threatening Violence
The offences are all misdemeanours in nature
and the sentence ranges from 6months
imprisonment to 5years imprisonment. In
cases of been armed, the arms used may have
to be forfeited to the State.
OFFENCES AGAINST PUBLIC AUTHORITY
CONTEMPT OF COURT:
• There are generally two types of contempt; Criminal
and Civil Contempt.
• The principal law is found under section 116 of the
Penal Code and the same section is self explanatory.
Criminal Contempt consists of acts tending to obstruct
the due administration of justice.
Civil contempt this is also called contempt in procedures
and it consists of disobedience to the judgements,
court orders and other processes of superior courts.
 CONTEMPT IN THE FACE OF THE COURT
• This may be words or actions in the presence of
the court which interferes or tends to interfere
with the course of justice.
Language: insults to judge, counsel or witnesses
Physical Attack against them
• Any action which will have the effect of prejudicing
the fair trial of a pending proceeding, whether civil
or criminal is a contempt. Examples include:
threatening or intimidating parties, witnesses or
the judge or offering bribes.
FRAUD AND BREACHES OF TRUST BY PUBLIC
OFFICERS
• Section 123 of the Penal Code criminalises the
conduct of any person employed in the public service
in Zambia who commits a fraud or breach of trust in
the discharge of his or her duties.
• The conduct must affect the public in that it must be
harmful or injurious to the public
• The harm or injury need not necessarily be pecuniary
but may be economic loss or loss in the integrity of
the office such that the public confidence is lost or
eroded.
The section provides:
“Any person employed in the public service
who, in the discharge of the duties of his
office, commits any fraud or breach of trust
affecting the public, whether such fraud or
breach of trust would have been criminal or
not if committed against a private person, is
guilty of a misdemeanour.”
Being a misdemeanour, the judge may exercise
discretion in sentencing the accused person.
 DISOBEDIENCE OF STATUTORY DUTY
• Section 126 makes provision for this offence
and clearly, the section if self explanatory. It
criminalises conduct which amount to
disobeying or contravening the statute or act.
• One may omit to do an act as required by the
Statute or the Act or do something which the
Statute or Act forbids.
 CRIMINAL DAMAGE
• Criminal damage is any damage which has been caused by an
individual to some form of property. Examples of offences involving
criminal damage: Arson, threat to destroy property or damage to
property
• When a case is concerned with damage to property which is criminal
the case is brought by the state against that individual in a criminal
court.
• Chapter 24 of the Penal Code is the primary source of law and gives
the guidance when dealing with offences related to criminal damage
to property.

• The Penal Code Amendment Bill no. 19 of 2007 provides as follows:

The following must be proved in offences related
to criminal damage:
• Damage
• To Property
• Belonging to another
• That was damaged without lawful excuse
• Intention to cause the damage / recklessness as
to whether the damage would be caused
• ARSON (Section 328 as amended by No.19 0f 2007):

the willful or malicious burning of property (as a building)

especially with criminal or fraudulent intent.
It has also been defined as the crime of intentionally and
maliciously setting fire to structures or wildland areas. It
may be distinguished from other causes such as
spontaneous combustion and natural wildfire.

In Zambia, it is the setting of fire to any building or structure

whether completed or not, vessel or motor vehicle, crops or
a mine.
The punishment for it is not less than 10 years imprisonment.
 THREAT TO DESTROY OR DAMAGE
PROPERTY
Certain conduct of the accused under this
offence may give rise to offences of
attempts i.e attempts to commit arson or
attempts to destroy property by explosives
etc.
Threats can even be in writing and Section
341 talks about threats to burn or destroy.
 PUNISHMENT AND PRINCIPLES OF
SENTENCING
• LEGAL PUNISHMENT:
Punishment is the authoritative imposition of something
negative or unpleasant on a person in response to
behaviour deemed wrong by an individual society,
Punishment may be carried out formally under a system
of law or informally in other kinds of social settings
such as within a family.
Hence, punishment may also be deemed as the mere
subjecting of someone to a penalty for a crime
committed.
 JUSTIFICATION OF PUNISHMENT:

• It follows therefore, that in justifying punishment,

everyone who breaks the law without lawful excuse
of justification must be adjudged guilty and be
liable for punishment.
• From a criminal law perspective, punishment is
regarded as a response to an accused’s wrongful
behaviour and it indicates by punitive means that
the accused has done something wrong. The
punitive nature of the sanctions confirms that the
accused has done something legally prohibited by
criminal law.
POWERS OF CRIMINAL COURTS IN ZAMBIA TO INFLICT PUNISHMENT:

• Courts have been given powers to inflict punishment on

persons found guilty certain crimes. The Penal Code in
Section 24 makes provision for the powers that Courts with
criminal jurisdiction may impose on convicts.
The punishment may range from a simple fine to imprisonment
with hard labour, death, deportation or even forfeiture.
 Needless to note the above, the President may pardon a
convict by exercise of his powers as outlined in Article59 of
the Constitution of Zambia Cap 1. The sentence imposed on
a convict is immaterial when the President is exercising his
prerogative of mercy. He can even pardon someone on a
death sentence.
 In the exercise of his authority, the president
may substitute a lesser sentence for any
sentence imposed on any person.
 The president exercises his prerogative of
mercy in consultation with an advisory
committee on the prerogative of mercy
committee.
 THEORIES OF PUNISHMENT
• There are four fundamental justifications for
punishment and these include:
retribution, deterrence, rehabilitation, and
incapacitations such as isolation in order to
prevent the wrongdoer's having contact with
potential victims,
It has been argued however that only retribution
is central to the concept and none of the other
justifications are guaranteed outcomes
 RETRIBUTION
Retribution is the practice of "getting even" with a wrongdoer — the
suffering of the wrongdoer is seen as good in itself, even if it has no
other benefits
Hence, it may be used to indicate vengeance or expiation (paying a
penalty for something or making amends.)
It has been claimed that punishment meted on an individual meets
with the victim’s desire for vengeance and the state merely acts on
behalf of the victim. In this regard, the offender is viewed as a
sinner who must be purified by being subjected some form of pain
and suffering and mostly, the offender deserves to be punished.
The retributive theory simply asserts that it is right for the offender
to be punished because a human being is an autonomous
individual and responsible for his or her actions.
• Retributive justice is a theory of justice that
considers that punishment, if proportionate, is
a morally acceptable response to crime, with
an eye to the satisfaction and psychological
benefits it can bestow to the aggrieved party,
its intimates and society.
• Retribution sets an important standard on
punishment — the transgressor must get what
he deserves, but no more.
 DETERRENCE
• To deter is to prevent or to discourage
someone from doing something.
Thus this theory is also termed as the
PREVENTIVE theory of punishment.